Does the Smoot-Hawley Act Justify the Trump Tariffs? No, Says Philip Zelikow

My Hoover Institution colleague Philip Zelikow was kind enough to pass this along; he is an emeritus history professor at the University of Virginia, but also a lawyer:

On June 1, Yale's Jed Rubenfeld published an essay on The Free Press criticizing the recent legal ruling on Trump's tariffs. "The Judges Got It Wrong: Trump's Tariffs Are Legal." The subtitle adds: "The words of a 100-year-old law are clear, says Jed Rubenfeld. So why didn't Trump's lawyers mention it?" Professor Rubenfeld is referring to broad empowering language in a section of the infamous Smoot-Hawley act of 1930 that allowed a president to impose tariffs of up to 50% on countries that burdened U.S. commerce.

There is a straightforward answer to the question of why Trump's lawyers didn't mention this. Well, no one cites it because this part of Smoot-Hawley was superseded long ago. The issue has never been litigated because this section has never been used to impose a tariff. The office of the U.S. Trade Representative presumably knows this.

Professor Rubenfeld had staked out a position on the legality of the tariffs right away, on April 7 (also on The Free Press), arguing that the tariffs were probably legal. He now wishes to offer this argument for why he wasn't mistaken in that initial judgment.

The legal standard for a superseding statute (also called 'implied repeal') is well known. There are two situations. The first is "irreconcilable conflict." The second situation, as the Supreme Court explained in Posadas v. National City Bank, 296 U.S. 497 (1936), is "if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act." 296 U.S. at 503.

The original Smoot-Hawley language that Rubenfeld cites was in section 338(d) of the Tariff Act of 1930 [19 U.S.C. §1338(d)], which granted the President this broad tariff power if a foreign country "places any burden or disadvantage upon the commerce of the United States." Similar language had been used in the Fordney-McCumber tariff act of 1922.

This particular section was effectively repealed and superseded by section 252 of the Trade Expansion Act of 1962. (One can quibble about the effect of the 1934 Reciprocal Trade Act, but no need.)

Section 252 laid out what the President could do if a foreign country took various actions to "oppress the commerce" of the US (252(a)), or "burden United States commerce" either with nontariff barriers (section 252(b)) or "burden United States commerce" with import restrictions (section 252(c)). Applying the Posadas standard, section 252 covered "the whole subject" of section 338(d) of Smoot-Hawley and was "clearly intended as a substitute," and so it thus operated "similarly as a repeal of the earlier act."

Section 252 of the 1962 Act was itself then effectively repealed and superseded by section 301 of the landmark Trade Act of 1974. That section covers, in great detail, what the executive branch may do if "an act, policy, or practice of a foreign country … is unjustifiable and burdens or restricts United States commerce."

Section 301 covered "the whole subject" of section 252 of the 1962 act and was also "clearly intended as a substitute" for it. Those details were refined in further acts of Congress passed in 1979, 1984, and 1988. The 1988 amendments, adopted during the last great surge of protectionism before this one, added what are known as the 'Super 301' authorities.

An argument that section 338(d) of Smoot-Hawley is still alive and well, would have made section 252 of the 1962 Act a nullity, just as it would make section 301 of the 1974 Act a nullity. By contrast, section 232 of the 1962 Act was not effectively replaced in the 1974 act. It is the section that provides the alternative "national security" basis that President Trump has used for certain sectoral tariffs, such as those on steel and aluminum.

Section 338(d) of Smoot-Hawley is long dead, at least since 1962. It never received a ceremonial burial. But, to repeat, the reason that no court ever had to formally entomb this section of Smoot-Hawley is because no president ever used it to impose a tariff.

I hope to have more on this topic in the future.